Wednesday, September 26, 2007

Circuits split on consular-warning lawsuits

A divided panel of the U.S. Court of Appeals for the Ninth Circuit this week rejected a civil suit brought by the victim of a violation of Article 63 of the 1963 Vienna Convention on Consular Relations, requiring that noncitizen arrestees be told they may call their consulate. Judge Pamela Rymer (right), joined by Judge Arthur L. Alarcón, wrote in Cornejo v. City of San Diegothat "the right to protect nationals belongs to States party to the Convention," and that "no private right is unambiguously conferred on individual detainees"; therefore, 42 U.S.C. § 1983, a federal civil rights statute, offered no path to relief.In so ruling, the majority parted company not only with the dissenter, Senior Judge Dorothy W. Nelson (left) -- who wrote that "it is clear that Article 36(1)(b) does confer individual rights" -- but also with the opinion that Judge Diane Wood (below right) wrote for a unanimous Seventh Circuit panel last March in Jogi v. Voges, 480 F.3d 822. (The Jogi decision, about which we posted here, may be viewed free here; log-on required.)Circuit splits sometimes portend eventual review of an issue by the U.S. Supreme Court. In any event, there's no doubt that Court will grapple soon with aspects of the Consular Relations Convention. For this circuit split arises just weeks before consideration of the enforceability vel non of Avena, a 2004 International Court of Justice judgment that called for reconsideration of noncitizens who'd been convicted in the United States without having been told of the right of consular access. The high court, whose October Term 2007 begins Monday, will argument in that case, Medellín v. Texas, on October 10.